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PETITIONER: BABU LAL

       Vs.

RESPONDENT: STATE OF HARYANA AND ORS.

DATE OF JUDGMENT16/01/1991

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 AIR 1310            1991 SCR  (1)  73  1991 SCC  (2) 335        JT 1991 (1)   211  1991 SCALE  (1)39

ACT:      Food  Supplies Department--Sub-Inspector--Appointed  on ad-hoc   temporary  basis--Service  terminated  because   of pendency  of  criminal  proceedings--Later  acquitted--Order terminating     services    held    illegal--Entitled     to regularisation of service.

HEADNOTE:      The  appellant was appointed an Sub-Inspector,  food  & Supplies  by respondent No. 2 on 13.4.1975 on  ad-hoc  basis against  service-man quota; the post being purely  temporary liable to be terminated without notice and without assigning any  reasons  or  on arrival of a  regular  candidate.   The appellant  continued in service on that post  till  November 17,  1980, when his services were terminated.  Prior to  the termination  of his services he was placed under  suspension on April 15, 1980 in view of the criminal proceedings  under Section  420,  IPC  pending  against  him  and  before   the culmination  of  criminal  proceedings,  his  services  were terminated by order dated November 17, 1980, as   aforesaid. Criminal  case against the appellant was decided on  October 21,  1981  wherein  he was acquitted  of  the  charge.   The appellant  on  receiving  the order of  termination  of  his services filed Civil Suit 453 of 1981 in the court of Senior Sub-Judge, narnaul praying for a declaration that the orders of  suspension  as  also termination  were  illegal,  wrong, arbitrary  and without jurisdiction and that  the  appellant was  entitled  to reinstatement and  regularisation  of  his service  under  the Government notification  dated  1.1.1980 issued  by the Chief Secretary to the Government of  Haryana authorising regularisation of such ad-hoc employees who held the  Class  III  posts for a minimum period  of  two  years. According to the appellant his case was covered by the  said notification and as such he was entitled to all the benefits of service.  The Senior Sub Judge held that as the appellant was  acquitted of the offence, the authorities  should  have revoked  the suspension order and have paid the pay for  the period for which the appellant remained under suspension and thus  allowed to the appellant all the benefits.  An  appeal was  taken by the respondents to the Addl.   District  Judge who  affirmed the order of the trial court holding  that  no

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enquiry  was conducted before termination of the service  of the  appellant.   Against the order of  the  Addl.  District Judge, the respondents preferred an appeal                                                        74 before the High Court and the High Court allowed the  appeal holding   that  the  appellant  was  not  entitled   to   be regularised  automatically  unless  he  fulfilled  all   the conditions given in the notification.  It was also held that the case of the appellant was considered for  regularisation by the Department but the same was not found  suitable;  the services of the appellant were terminated in accordance with the terms of his appointment.  The appellant has filed  this appeal  against  that order in this  court  after  obtaining special leave.      Allowing the appeal, this Court,      HELD:  The order of suspension made by  the  respondent No.  2  is  admittedly  on the  sole  ground  that  criminal proceeding was pending against the appellant.  The order  of termination  had been made illegally during the pendency  of the order of suspension and also during the pendency of  the criminal   proceeding  which  ultimately  ended   with   the acquittal  of the appellant.  The settle position in law  is that  the  appellant  who was suspended  on  the  ground  of pendency  of  criminal  proceeding  against  him,  on  being acquitted   of  the  criminal  charge  is  entitled  to   be reinstated  in  service.  His acquittal  from  the  criminal charge  does  not  debar  the  disciplinary  authorities  to initiate  disciplinary  proceedings  and  after  giving   an opportunity  of  hearing to the appellant pass an  order  of termination on the basis of the terms and conditions of  the order of his appointment. [78C-E]      As the appellant whose name was sent through Employment Exchange  and who was appointed and has completed two  years service  on 31.12.1979, he is entitled to be considered  for regularisation  in  the  post  of  Sub-Inspector,  Food  and Supplies. [78E]      Smt. Rajinder Kaur v. State of Punjab and Anr.,  [1986] 4 S.C.C. 141; Anoop Jaiswal v. Government of India, [1984] 2 S.C.R.   453;  Hardeep  Singh  v.  State  of   Haryana   and Ors.,[1987] 4 S.L.R. 576, referred to.

JUDGMENT:      CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No. 1309 of 1986.      From  the  Judgment  and Order dated  8.8.1985  of  the Punjab  and Haryana High Court in Regular Second Appeal  No. 307 of 1985.      A.B. Rohtagi, Ranbir Singh Yadav and H.M. Singh for the Appellant.                                                         75      A.G. Prasad and Mahabir Singh for the Respondents.      The Judgment of the Court was delivered by      RAY,  J.  This appeal on special leave is  against  the judgment  and  order passed by the High Court  of  Punjab  & Haryana in Regular Second Appeal No. 307 of 1985 whereby the High  Court upheld the order of termination of  services  of services  of the appellant made on November 17, 1980  passed by  the respondent No. 2, the Directer of Food and  Supplies and Deputy Secretary to Government of Haryana, Chandigarh.      The salient facts that gave rise to the instant  appeal are as follows:      The  appellant we appointed as Sub-Inspector, Food  and Supplies  in  the  Department of Food and  Supplies  by  the

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Respondent No.2  by order dated April 13, 1975  on  and  hoc basis  against the ex-servicemen quota.  As per the  service rules  the terms and conditions of the said appointment  are as hereunder:          "(i)   The   post  is   purely   temporary.    Your          appointment is purely on ad hoc basis and shall not          exceed six months.  Your services are liable to  be          terminated  at any time during this period  without          any notice and without assigning any reason.   Your          services  are also liable to be terminated  at  any          time   without   notice  on  arrival   of   regular          candidates  from the Haryana  Subordinate  Services          Selection Board."      The  appellant had been continuing in the said post  of Sub-Inspector without any break till November 17, 1980  i.e. the  date  of termination of his services.   The  appellant, however, was served with an order of suspension made by  the Respondent  No. 2 on April 15, 1980 in view of the  criminal proceedings  pending  against the appellant u/s 420  of  the Indian Penal Code during the pendency of which the order  of termination  was  made  on  November  17,  1980.   The  said criminal proceeding being Criminal Case No. 1413 of 1981 was decided on October 21, 1981 wherein he has been acquitted of the said charge.  The Additional Chief Judicial  Magistrate, Narnual had found that:-          "..... Babu Ram accused was not present at the spot          and  he had no role to play in the distribution  of          the cement.  The Appellant could not point out even          a  single  factor  from  the  file  by  which   the          participation of this accused can be said to                                                        76          have  been  proved by the  prosecution.   As  such,          accused,  Babu  Ram cannot be held  guilty  of  the          offence charged and he is acquitted of the same."  The plaintiff-appellant immediately on receiving the  order of termination after giving the requisite notice brought  an action  being  Civil  Suit No.453 of 1981 in  the  court  of Senior  Sub Judge, Narnual praying for a declaration to  the effect that the order of suspension dated 15.4.1980 and  the order   of  termination  dated  17.11.1980  passed  by   the respondent  No.2 were illegal, wrong, arbitrary and  without jurisdiction and the appellant is entitled to  reinstatement with  effect from the date of his suspension and so  further entitled  to be regularised and to all the benefits  of  the service.   It  had  been  stated in  the  pleadings  of  the appellant that a notification dated 1st January, 1980 issued by  the  Chief  Secretary  to  the  Government  of   Haryana addressed  to all the Head of the Departments vide memo  No. G.S.R./Const./   Art.  309/80  stating  that  such  ad   hoc employees who hold the class III posts for a minimum  period of  two  years on 31.12.1979 are to be regularised  if  they fulfill the following conditions:          (a) Only such ad hoc employees as have completed  a          minimum  of two years service on 31.12.1979  should          be   made  regular.   However,  break  in   service          rendered on ad hoc basis upto a period of one month          may  be  condoned but break  accruing  because  the          concerned  employee  had left service  of  his  own          volition  or  where  the  ad  hoc  appointment  was          against   a  post/vacancy  for  which  no   regular          recruitment was required/intended to be made,  i.e.          leave  arrangements or filling up of  other  short-          time vacancies, may not be condoned.           (b)  Only  such  ad hoc  employees  as  have  been          recruited through the Employment Exchange should be

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        made regular.          (c)   The work and conduct of the ad hoc  employees          proposed to be regularised should be of an  overall          good category. The  plaintiff-appellant pleaded that he having put  in  the minimum  period of two years of service on 31.12.1979 became entitled to have his service regularised in view of the said Notification.  He further pleaded that the alleged order  of termination  was  in fact an order of dismissal  and  so  it amounts to punishment and the same being penal in nature  is null  and  void  because it contravened  the  provisions  of Constitution of India.  The Senior Sub Judge, Narnaul  after hearing the                                                        77 parties held that as the petitioner-appellant was  acquitted of the said offence, the authorities should have revoked the suspension  order and have paid the pay for the  period  for which  the appellant remained under suspension.   The  Court further held that the appellant will be entitled to all  the benefits of his service.      Against this judgement and decree, an appeal was  filed being  C.A. No. 129 of 1983 in the Court of  Addl.  District Judge,  Narnaul by the State.  The Addl. District  Judge  by his  judgement dated 18.10.1984 affirmed the  judgement  and decree of the learned Sub-Judge holding that no enquiry  was conducted   before  termination  of  the  service   of   the appellant.  The Addl. District Judge also held that:          "......the  plaintiff  had completed two  years  of          service and according to executive instructions his          services were bound to be regularised.   Reasonable          opportunity   to  defend  was  not  given  to   the          plaintiff  before  termination  of  his   services.          Order  of  termination  of services  was  merely  a          camouflage   for   an  order   of   dismissal   for          misconduct.  He was still under suspension when  he          was  terminated.  All these facts lead only to  one          conclusion  that the impugned order of  termination          of  the  services of the plaintiff is  bad  in  law          ...."      Against this judgement and order R.S.A. No. 307 of 1985 was  filed  by  the said respondents in the  High  Court  of Punjab and Haryana at Chandigarh.  The High Curt allowed the appeal  on  setting aside the judgement and  decree  of  the courts below holding that the appellant was not entitled  to be  regularised  automatically unless he fulfilled  all  the conditions  given in the Notification.  It was further  held that   when   the  case  of  the  appellant  came   up   for regularisation  the  Department found that  the  appellant’s work  and conduct was not of the required standard so as  to justify  his  regularisation and consequently  his  services were  not regularised.  It was further held that  since  the appellant  was  ad hoc employee  therefore,  the  Department instead   of  waiting  for  the  result  of   the   criminal proceedings  thought  it  fit  under  the  circumstances  to dispense  with the services of the appellant  in  accordance with the terms of his appointment.      This judgement is under challenge in this appeal.   The pivotal question that poses itself for consideration  before this   Court  is  firstly  whether  during  the  period   of suspension   in  view  of  the  criminal  proceeding   which ultimately ended with the acquittal, an order of termi-                                                        78 nation  can be made against the appellant by the  respondent No.2 terminating his ad hoc services without reinstating him as  he  was  acquitted from the charge u/s 420   I.P.C.  and

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secondly whether the impugned order of termination from  his service can be made straight away without reinstating him in the  service after he earned acquittal in the criminal  case and   thereafter  without  initiating  any  proceeding   for termination  of  his  service  as  the  impugned  order   of termination  was of penal nature having civil  consequences. It  has also to be  considered in this connection  that  the respondent  No.2  has also not considered the  case  of  the appellant for regularisation of his services even though  he had  completed  two  years  of  service  as  on   31.12.1979 fulfilling all the requisite terms and conditions  mentioned in  the said Notification.  The order of suspension made  by the  respondent No.2 is admittedly on the  sole  ground that criminal proceeding was pending against the appellant.   The order  of  termination had been made  illegally  during  the pendency  of  the order of suspension and  also  during  the pendency  of the criminal proceeding which ultimately  ended with  the  acquittal of the appellant.  It  is  the  settled position  in law that the appellant who was suspended on the ground  of pendency of criminal proceeding against  him,  on being acquitted of the criminal  charge is  entitled  to  be reinstated  in  service.  His acquittal  from  the  criminal charge  does  not  debar  the  disciplinary  authorities  to initiate  disciplinary  proceedings  and  after  giving   an opportunity  of  hearing to the appellant pass an  order  of termination on the basis of the terms and conditions of  the order  of  his appointment.  Furthermore  as  the  appellant whose name was sent through Employment Exchange and who  was appointed and has completed two years service on  31.12.1979 is entitled to be considered for regularisation in the  post Sub-Inspector,  Food  and  Supplies.   The  High  Court  had observed that:          ".....  In these circumstances, when his case  came          up  for regularisation, the Department  found  that          the  plaintiff’s  work and conduct was not  of  the          required   standard   so   as   to   justify    his          regularisation  and consequently his services  were          not regularised." This  finding  of the High Court is totally baseless  in  as much  as  the  counsel for the  said  respondent  could  not produce  any order or documentary evidence to show that  the respondents  considered  the case of the appellant  for  the purpose   of   regularisation   in   accordance   with   the Notification  dated 1st January, 1980.  As such the  finding of  the  High Court is wholly bad and  illegal.   The  other finding  of  the  High  Court  that  the  acquittal  of  the appellant by the criminal court was of no consequence as his services  were terminated before the order of acquittal  was made because the appellant was no more in service is also                                                        79 against the well settled legal position.  It has also to  be borne in mind that under the Notification dated 1st January, 1980   issued  by  the  Government,  the  appellant   having fulfilled the condition of two years of service is  entitled to be considered by the Government for regularisation of his service  in accordance with the said executive  instructions issued  by  the Government.  As we have said  herein  before that there is nothing on record to show that the  Government has   ever  considered  the  case  of  the   appellant   for regularisation   of  his  service  in  the  light   of   the instructions  contained in the said Notification  dated  1st January, 1980, the impugned order of termination of  service made by the Government is illegal and arbitrary and so it is liable to be quashed and set aside.      Moreover,  from the sequences of facts of his case  the

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inference  is  irresistible  that  the  impugned  order   of termination  of  the service of the appellant  is  of  penal nature  having  civil consequence.  It is  well  settled  by several  decisions  of this Court that though the  order  is innocuous on the face of it still then the Court that though the  order  is innocuous on the face of it  still  then  the Court  if necessary, for the ends of fair play  and  justice can lift the veil and find out the real nature of the  order and  if  it  is found that the impugned order  is  penal  in nature  even  though  it  is  couched  with  the  order   of termination  in accordance with the terms and conditions  of the  order  of  appointment, the order will  be  set  aside. Reference may be made in this connection to the decision  of this  Court  in Smt. Rajinder Kaur v. State  of  Punjab  and Another, [1989] 4 SCC 181 in which one of us is a party.  It has been held that:          "The  impugned order of discharge though stated  to          be  made in accordance with the provisions of  Rule          12.21 of the Punjab Police Rules, 1934, was  really          made  on  the basis of the misconduct as  found  on          enquiry  into   the  allegation  behind  her  back.          Though  couched in innocuous terms, the  order  was          merely a camouflage for an order of dismissal  from          service  on the ground of misconduct.   This  order          had  been  made without serving the  appellant  any          charge-sheet,  without asking for  any  explanation          from her and without giving any opportunity to show          cause against the purported order f dismissal  from          service and without giving any opportunity to  show          cause against the purported order of dismissal from          service  and  without  giving  any  opportunity  to          cross-examine the witness examined.  The order  was          thus, made in total contravention of the provisions          of  Article 311(2) and was therefore, liable to  be          quashed and set aside."      This case relied on the observations made by this Court in the case of Anoop Jaiswal v. Government of India,  [1984] 2 S.C.R. 453                                                        80 wherein it has been observed that:          "....Where the form of order is merely a camouflage          for  an  order of dismissal for  misconduct  it  is          always open to the court before which the order  is          challenged to go behind the form and ascertain  the          true  character of the order.  If the  court  holds          that  the  order  though in the form  is  merely  a          determination  of employment is in reality a  cloak          for an order of punishment, the court would not  be          debarred, merely because of the form of the  order,          in  giving  effect to the rights conferred  by  law          upon the employee".      Similar observation has been made by this Court in  the case of Hardeep Singh v. State of Haryana and Ors., [1987] 4 S.L.R. 576. It has been held in this case as under:          "In the instant case, it is clear and evident  from          the averments made in paragraph 3, sub-para (i)  to          (iii)  and paragraph (v) of  the  counter-affidavit          that  the impugned order of removal/dismissal  from          service was in substance and in effect an order made          by way of punishment after considering the  service          conduct  of  petitioner.   There is  no  doubt  the          impugned order casts a stigma on the service career          of  the petitioner and the order being made by  way          of  punishment, the petitioner is entitled  to  the          protection  afforded by the provisions  of  Article

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        311(2)  of  the  Constitution as  well  as  by  the          provisions  of   Rule 16.24 (Ix)(b) of  the  Punjab          Police Rules, 1984...."          In  the premises aforesaid, we are  constrained  to hold that the judgement rendered by the High Court is wholly illegal  and unwarranted and as such we quash and set  aside the  same and affirm the judgement of the courts below.   We direct  that  the  appellant be reinstated  in  the  service immediately  and  be paid all his emoluments  i.e.  pay  and allowances from the date of the order of his suspension i.e. 15.4.1980 till the date of reinstatement into service  minus the  suspension  allowance  that had been  received  by  the appellant during the period of his suspension (if any).  The respondents  are  at  liberty to consider the  case  of  the appellant for regularisation in the light of the norms  laid down   in   the  executive  instructions   issued   on   1st January,1980 by Notification No. G.S.R./Const./Art.  309/80. The  appeal is allowed.  There will be no order as to  costs in the facts the circumstances of the case. Y.Lal                                   Appeal allowed.                                                        81